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2015 Supreme(Mad) 2211
MADRAS HIGH COURT
K.B.K.Vasuki, J.
K.Sugumar - Appellants
Versus.
P.K.Sundaram & Others - Respondents
Second Appeal No.1347 of 2010 and MP.Nos.1 and 2 of 2013
Decided on : 29.4.2015
Dr. C.Ravichandran for M/s. S.D.Venkateswaran
Mr. T.P.Sahankaran for R1. Batta Due for R2 and R3
Headnote:
Transfer of Property Act – Section 52 – Relief of specific performance – Plaintiff filed the suit against the respondents for the relief of specific performance of contract dated 12.04.2003 – Held, Equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. – The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. – At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance. – Though the first respondent has totally denied the execution of the sale agreement and also had taken a specific plea that the suit properties are joint family property. – He has not produced any evidence within his knowledge and the same would go to show that he has not come to court with clean hands, but only with an idea of defeating the right accrued to the purchaser under a valid sale agreement. – Courts below have wrongly presumed that the burden is on the purchaser to prove that the suit properties are not joint family properties and applied Section 52 of Transfer of Property Act wrongly and declined the discretionary relief. – The first substantial questions of law is also answered in favour of the appellant. – Second Appeal Allowed
The plaintiff is the appellant herein.
2. The plaintiff filed the suit against the respondents for the relief of specific performance of contract dated 12.04.2003.
3. The brief averments made in the plaint are as follows :-
The first respondent entered into a sale agreement dated 12.04.2003 with the appellant for the sale of suit property at the rate of Rs.500/- per cent and received a sum of Rs.2,00,000/- as advance. In pursuant to the sale agreement, the possession of the property was also handed over to the appellant. The first respondent agreed to execute a sale deed within six months from the date of handing over the original title deed to the appellant. The appellant having been in possession of the property spent a sum of Rs.1,50,000/- and raised casuarina trees. The first respondent while entering into the sale agreement stated that though he is the absolute owner of the property he will also get the signatures of the respondents 2 and 3, who are his brother and the son of his predeceased brother respectively. The appellant paid further sum of Rs.1,00,000/- on 16.05.2003 to the first respondent. Whenever the appellant was approaching the first respondent on many occasion requesting him to complete the sale transaction, the first respondent was giving evading replies and the first respondent suddenly issued a notice dated 10.10.2003, which was actually forwarded on 07.11.2003, alleging that the appellant should not enter into the suit lands. The appellant sent a suitable reply stating that he was already in possession, ready and willing to perform his part of contract and the time is not the essence of the contract, for which there was no reply. Since the first respondent was not coming forward to execute the sale deed, the suit came to be filed for the above stated relief.
4. The respondents 2 and 3 remained exparte and the first respondent alone filed a written statement inter alia stating as follows: The execution of the sale agreement, handing over possession and receiving advance amount were all denied. The first respondent would state that the property is the joint family property of his father Kandasamy Mudaliar and his brothers Thanikachalam and Arumugam and also a sister Padma, who constitute a Hindu undivided joint family. The first respondent would further state that the members of the joint family keep the suit properties in joint possession and enjoyment. The first respondent also states that he was in need of money for his transport business and he approached the father of the appellant by name Krishnadevaraja Reddiar, who promised to advance money and insisted the respondent to execute a mortgage deed in respect of the suit property as a collateral security. The first respondent signed in stamp papers, which were given as collateral security for the money advance and he never entered into any sale agreement. Therefore the alleged sale agreement was not executed by the first respondent and the first respondent signed in stamp papers with an intention to create a collateral security to the money advanced i.e sum of Rs.2,00,000/-. Though, it is true that further sum of Rs.1,00,000/- was received from the father of the appellant, it was not endorsed on any sale agreement, but in blank paper. The alleged sale agreement dated 12.04.2003 is fabricated and concocted document and the first respondent was and is always ready to repay the debt of Rs.3,00,000/-. However, suppressing the above facts, the appellant has filed the suit for specific performance, which is not maintainable. This respondent has no absolute right over the property.
5. With the above averments, the Subordinate Judge, Madurantakkam framed triable issues and after analyzing the oral and documentary evidence found that when the property belongs to several persons and an agreement executed by one of the person who holds a fraction of his share, cannot be enforced and therefore, declined to grant the specific performance of the contract. Howeve
